Zugang zu Dokumenten[en] 

The 1992 Maastricht Treaty contained a (non-binding) declaration on access to documents. In accordance with the objectives expressed at the European Council meetings that followed, the Commission adopted a decision on public access to Commission documents in February, 1994. This implemented a joint code of conduct between the Commission and Council and established the general principle that public should have the widest possible access to documents held by the two institutions, subject to the private and public interests being protected. The 1995 Amsterdam Treaty introduced a new Article 255, then giving citizens an explicit right of access to European Parliament, Council and Commission documents.

In 2000, under pressure from NATO, the High Representative for Common Foreign and Security Policy (CFSP) and Secretary-General of the Council, Javier Solana, prevailed upon the Council to unilaterally adopt new security regulations regarding access to documents and to introduce new, restrictive classifications for confidential documents.

This so-called 'Solana decision' created considerable controversy in EU circles and was labeled a "summertime coup" by journalists and NGOs. Objections to the action led to several legal challenges being launched at the Court of the First Instance, including one by the Parliament.

By end 2000, legislative proposal were made to replace 'Solana decision'. The Swedish Presidency was able to secure a compromise agreement for the adoption of a regulation between the European Parliament, Council of Ministers and the Commission after a gruelling set of three-way negotiations.

The new regulation regarding public access to European Parliament, Council and Commission documents was formally adopted on 30 May 2001 and came into effect on 3 December 2001. The regulation grants a right of access to documents of the three institutions to any Union citizen and to any natural or legal person residing, or having its registered office, in a Member State. The definition of a "document" is a broad one and no category of document is excluded a priori from the right of access, including classified documents.

Refusal to grant access must be based on one of the exceptions provided for in the regulation and must be justified on the grounds that disclosure of the document would be harmful. A complaint against a refusal can be made with the European Ombudsman or an appeal can be brought before the Court of First Instance.

The new regulation introduces a number of innovations designed to increase transparency and improve public access to the institutions' documents:

• access is extended to documents originating with third parties (for example, the Member States, third countries, the other institutions, the public);
• a document protected by an exception (other than the protection of public interest or of privacy) can still be released where serving the public interest is more important than protecting the document;
• time limits for replies are reduced to 15 working days.

The openness of the institutions' work has undergone much improvement since the adoption of the regulation:

• the EUR-Lex portal on the EUROPA server became available in June 2001 for access to the Official Journal;
• the minutes of Commission meetings have been available on the Internet since January 2002;
• a public register of Commission documents has been available on-line since June 2002;
• the Parliament has adopted a number of internal measures and made available to the general public its official register since 2002;
• the Council register, available on-line, contains references to documents produced from 1999 onwards; some documents can be displayed directly, while others must be request from the Council's document access service.

The draft text of the Constitution includes a new article on the right of access to documents (Articles III-301) which extends the obligation to transparency to all institutions, agencies and bodies. It further opens the legislative process to the public, sating that "the European Parliament and the Council shall not only meet in public but also ensure publication of the relevant documents. Moreover, the inclusion of the Charter on Fundamental Rights in the Constitution will make its article 42 on right of access to documents legally binding.

<strong>Michael Cashman, (PES-UK), draftsman of an own-initiative report on the implementation of the regulation on access to documents (1049/2001/EC), acknowledges that progress has been made as regards the number of accessible documents but considers that suitable tools must be set up to ensure a targeted response to requests on access to documents. He criticised the European Convention for not applying the principles set in the regulation, qualifying this behaviour as deplorable. He makes the following suggestions for improvement of the regulation on access to documents: 

• European Council documents should also be covered by the regulation;
• documents under comitology proceedings should be directly accessible;
• the Council should permit the identification of the positions of the various national de legations at the time of the decision-making process;
• the Council should provide access to legal opinions;
• the Council should stop using the classification "limited", "restricted" documents and should make these documents directly accessible;
• one interinstitutional register should be set up;
• the Commission should set up one single electronic register;
• reasons for refusal to access documents should be precise.

Tony Venables from European citizens action service (ECAS) , said: "When we look at the reports of the Institutions on the first year of operation of the regulation on access to documents, it is difficult to see any decisive improvement in the extent of transarency and access to confidential documents. Certainly more information is publicly available in the first place, but the rate of refusals has also increased which is a sign that the Institutions are cautiously hiding behind the exceptions rather than applying the public interest test in favour of disclosure".

London-based NGO,  Statewatch , regularly challenges the public access to EU documents and has lodged eight successful complaints in recent years with the European Ombudsman against the Council over access to documents. Statewatch argues that while much more EU information is now available, especially from the EU Council, thousands of documents do not appear on the required registers. It notes that NATO continues to pressure the EU to comply with NATO secrecy. It also warns that the areas of law enforcement and immigration are particularly susceptible to increased secrecy in an official climate dominated by counter-terrorism.